Document Type : Original Article
Author
. Associate Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran p-savrai@ sbu.ac.ir
Abstract
Computer programs are often written by a team of software programmers, the classic example being program code written by two or more programmers, each of whom incorporates ideas, expressions, text and editorial changes into the source code or binary code. In such a situation, the rights arising from the jointly produced program will generally belong to the authors. The conditions and consequences of ownership and especially the instances of a joint work, in the case of software, are not very clear and may differ from country to country. Understanding the criteria and requirements of a joint work is very important both for authors and for those who wish to explore the complexities and legal ambiguities surrounding it. In this article, the conditions of the joint work in software and the key requirements for its realization, including the common intention of the parties, inseparability and significant contribution in the creative expression of the joint work in the software industry and its examples and the cases that are not considered joint works in the legal sense, have been discussed. This article, highlights the importance of coding in the realization of a joint work in a computer program and clarifies that activities such as participating in training, editing, research assistance, expressing ideas, suggestions, recommendations, interviews, cooperation in software testing and contribution to the main content of the software, are generally not considered as contribution in software creation. Some of the questions that arise in connection with these complexities and ambiguities include: What are the key conditions and requirements for realizing a joint work? Are these requirements the same in all legal systems? What I have tried to answer in this article is the important question of how are examples of collaboration in the software industry realized? This question raises two other questions: Has the alleged co-author made a creative contribution that represents his or her own originality? What should the nature of this contribution be? Although we are faced with legal gaps and weak legal literature in the Iranian legal system, we can answer the aforementioned questions by interpreting existing legal rules and principles and using accepted standards and experiences of other countries, especially their case law. In answering the above questions, the author has tried to use the comparative method and compare the regulations of the legal systems and case law of countries. From the above comparative discussions, I have found out that in order to enjoy the protection provisions of copyright in a joint work, the contributions of the creators must go beyond the mere expression of ideas. The contribution must be such that the main ideas, algorithms and instructions are embodied in the form of computer codes. The work is considered a joint work, when it generally meets these key requirements: 1- The creation of a joint work must be based on objective and legal facts, implying the mutual intentions of the parties. 2- The contributions of the creators must be intertwined and inseparable, otherwise, the joint work will generally not be achieved (with the exception of France). 3- Although the contributions do not have to be the same in terms of "quantity and quality", in order to fulfill the criterion of originality, the contribution of each creator must be significant and creative. Considering the importance of coding in software collaboration, the following actions will not lead to the realization of a joint work: First, mere training, guidance, negotiation, and interviewing are not sufficient to achieve a joint work. Secondly, in cases where the contribution is merely in the form of expressing ideas or suggestions and the author is free to accept or reject them, this does not grant the contributor, the right to be considered as a co-creator. Without assistance in structuring the computer program, ideas, suggestions, and recommendations, no matter how useful they are, do not lead to the realization of a joint work. If the activity of only one contributor leads to the production of a creative work, the role of another may be reduced to the level of an editor or scribe. Thirdly, actions such as technical, advisory, organizational or financial assistance, supervision and facilitation of official registration of the program, due to the lack of creative contribution, are not considered contribution in the creation of a software work. To achieve the objectives of this article, the issues in question have been discussed in two sections with a comparative perspective. The first section is dedicated to explaining the concept of a joint work and the importance of its general elements, including common intention, inseparability, and significant contribution in the creative expression of the work. In the second section, the fundamental role and importance of coding in the creation of a joint work, the complexities of identifying creators and cases where participation is not considered legal are discussed.
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